Supreme Court Rejects Citizens United Offshoot

PHILADELPHIA (CN) — Two conservative justices bristled Tuesday as the Supreme Court rejected a case involving Delaware’s efforts to unmask the supporters of those who distribute election materials. Regardless of whether the material expressly supports a particular candidate, Delaware’s law requires any group that spends more than $500 on election material fewer than 60 days before an election to disclose its third-party supporters. The right-wing nonprofit Delaware Strong Families had claimed that the law would improperly restrict its distribution of a voting guide that lists how Delaware Senate candidates fall on issues such as supporting Planned Parenthood, approving the Keystone Pipeline, and amending the Constitution to define marriage as between a man and a woman. “DSF does not endorse or oppose candidates for office,” its guide says. The group describes itself on its website as “uniquely designed to equip Pastors and churches to speak truth.” Though U.S. District Judge Sue Robinson enjoined the law, the Third Circuit reversed last year after a hearing in which one judge scoffed at arguments that the guide was purely educational. “Otherwise, why not tell voters about the polar bear population?” Chief Judge Theodore McKee asked. The case implicated a gray area of the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, but Jonathan Cederbaum, a partner at WilmerHale representing Delaware, told the Third Circuit that that the voting guide fell into the exception allowed for disclosure under Citizens United because it was “intended to influence voters at the ballot box.” Delaware Strong Families sought appellate relief, but the Supreme Court shot the group down Tuesday without comment. Justice Samuel Alito said simply that he would have granted certiorari, but Justice Clarence Thomas penned a six-page dissent about the case. Arguing that “First Amendment harms justify eliminating disclosure requirements altogether,” Thomas said Delaware’s scheme “is far broader than those the court has previously upheld.” “In my view, it is time for the court to reconsider whether a State’s interest in an informed electorate can ever justify the disclosure of otherwise anonymous donor rolls,” the dissent continues. Thomas concluded by saying that “the purported government interest in an informed electorate cannot justify the First Amendment burdens that disclosure requirements impose.” “But if the court is determined to stand by its ‘exacting scrutiny’ test, then this case is its proving ground,” he added. “By refusing to review the constitutionality of the Delaware law, the court sends a strong message that ‘exacting scrutiny’ means no scrutiny at all. I respectfully dissent from the denial of certiorari.” Delaware’s representatives at the Campaign Legal Center meanwhile applauded today’s outcome. “This ruling ensures that [voters] will continue to have access to the information they need to make informed decisions on Election Day,” CLC associate counsel said in a statement. “We’re also extremely pleased to see the court refuse yet another challenge to its longstanding recognition that transparency in elections is a vital governmental interest, and that voters deserve to know the identities of the outside interests vying for their votes. Since Citizens United, the court has been presented with many opportunities to reexamine its strong support for disclosure laws, and has turned down each one.”